Supermarket went to ‘extraordinary lengths’ for sacked domestic violence survivor

An unfair dismissal claim by an employee of an IGA supermarket who survived domestic violence was dismissed by the Fair Work Commission this month after the employer was found to have done more than would be expected to assist.

Experts say the decision shows the need for law reform to protect people whose employment is affected by domestic violence.

The Fair Work Commission did not uphold a claim for unfair dismissal. Credit:Michele Mossop

The operator of the IGA supermarket employed the worker for more than ten years but she was dismissed earlier this year after receiving a series of warnings over an extended period about issues to do with her attendance.

The employee was counselled at work on various occasions about being late and absent from work.

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The employee claimed her behaviour was due largely to domestic violence, in particular a personal relationship which became increasingly "toxic and unbearable" and forced her to take out an intervention order.

She claimed she was absent from work due to the behaviour of her then partner, who had made a series of threats towards her but she was too embarrassed to provide full details to her employer.

The IGA chain was found to have been very supportive.
Credit:Bloomberg

'Very supportive'

Commissioner David Gregory found the employee clearly had to deal with some difficult and challenging issues in her personal life and these circumstances impacted on her behaviour and performance at work.

"However, it is also evident that [the supermarket] has at the same time been very supportive of her over an extended period of time, and went to some unusual lengths in this context," he said.

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"For example, the business paid for her to attend a series of professional counselling sessions."

Commissioner Gregory found the business had been "very tolerant" of repeated "poor punctuality and frequent absences" from work.

"[The employer] went to extraordinary lengths over an extended period of time to assist [the employee] in dealing with the issues outside of work that were impacting on her," Commissioner Gregory found.

"It also makes clear that it became increasingly frustrated by her failure to comply with the directions given to her to make contact when she was not going to be at work on time, or needed time off at short notice."

The Fair Work Commission found her dismissal was not harsh, unjust or unreasonable.

These are small business they have their own families and understand the difficulties that can arise.

Master Grocers Association's Marie Brown

The Master Grocers Association represented the supermarket at the hearing and the group's national legal counsel, Marie Brown said the commission found the supermarket chain had gone "above and beyond" what it needed to do.

"These are small business they have their own families and understand the difficulties that can arise," she said.

Earlier this month the government passed new laws providing five days domestic violence leave for all workers, building on a Fair Work Commission decision from March which brought the entitlement into awards.

"Obviously any employee who has domestic violence problems is going to be in a difficult situation," Ms Brown said.

Ms Brown said the five day leave arrangement was positive and was supported by the industry.

Janet Loughman, principal solicitor at the Women's Legal Service NSW said the case showed why further legal reform was needed.

"Employees commonly find it very difficult to tell their employers that they have experienced domestic violence and it is impacting on their capacity to attend work their capacity to carry out all of their responsibilities at work," she said.

The employee told the FWC she did not provide a full explanation of her personal situation “on account of embarrassment and shame”.

"This demonstrates the importance of including 'status as a victim or survivor of domestic violence' as a protected attribute in discrimination law in Australia, so that victims are protected from employers taking adverse action against them," Ms Loughman said.

"It also demonstrates the need for provisions for paid domestic violence leave for all workers, so that they are supported to deal with and recover from family violence. Losing a job as a result of domestic violence will only add to the economic and safety vulnerabilities of victim/survivors."

The SDA union which represented the employee was contacted for comment.

If you are affected by sexual assault, domestic or family violence and abuse call 1800RESPECT. Follow MySmallBusiness on Twitter, Facebook and LinkedIn.